At hearing, DeVos stands up for school choice
Political races tighten early in unpredictable year
Trump, Johnson close the gaps, but will the trend continue?
Posted by Richard Moore Sept. 2, 2016
It has been an unprecedented and unpredictable political season, and this week offered another unusual twist, with pre-Labor Day polls showing political races around the country narrowing, a development that more commonly occurs in mid-October.
Nationally, Hillary Clinton is either tied with or only slimly leading Donald Trump even in many mainstream media polls, and the trend has been with Trump over the past 10 days.
In Wisconsin, Democrat Russ Feingold is holding his lead over incumbent Republican Ron Johnson for the U.S. Senate, but there, too, Johnson has closed to within three points, according to a new Marquette University poll.
The mainstream media presidential polls are a shock primarily because they have heavily tilted toward Clinton even when less partisan and more independent surveys have indicated a closer race.
In the latest Fox News poll released last week, for example, the race is effectively tied, with Clinton holding a 41-39 lead that’s within the margin of error. Libertarian Gary Johnson takes 9 percent, and Green Party candidate Jill Stein gets 4 percent.
If that didn’t unsettle the Clinton camp, the Los Angeles Times tracking poll undoubtedly did. It put Trump ahead among likely voters, 45-42. Trump’s strength in that poll is driven by people who did not vote four years ago but say they are certain to this time.
And the Reuters/IPSOS poll, which last month altered its methodology to give Clinton a comfortable lead after Trump overtook her, now shows Trump trailing by only 40-38, even with the new methodology.
It’s hard to say what Clinton thinks about those numbers, but the media is trying to reassure itself. The L.A. Times, in analyzing Trump’s three-point lead, concluded that Trump still had a “potential route to victory, albeit a difficult one …”
Clinton is faring better in The Lakeland Times poll of polls, a collection of five polls known for their accuracy and chosen because they are unaffiliated with the partisan national media. The polls are Public Policy Polling, or PPP; Rasmussen Reports; Monmouth University; Quinnipiac University; and IBD/TIPP.
Among those polls, Clinton is leading by a solid 43.6 to 38.6 percent. However, some of those polls were taken in early August when Clinton was riding high after the Democratic convention, and later polls also reflect a tightening race. In that group, polls taken in the last week give Clinton a 42.3 percent to 38.6 percent lead.
Clinton is also on shakier ground in Wisconsin, where she should be running strong. In the Marquette poll released last week, among likely voters, Clinton leads Trump by three points, 41-38 with Johnson at 10 and Stein, 4. In early August Clinton led 47-34, Johnson at 9 and Stein at 3.
So what’s going on?
Part of it can be explained by the evaporation of Clinton’s convention bounce. Anytime a candidate gets a bounce after the convention, it almost always dissipates in a few weeks.
Clinton’s bounce was larger than normal, and the fall off bigger. But the polls indicate a larger trend toward Trump than merely a resettling of the race into its pre-convention configuration, and there are several reasons why.
First, Trump has had an outstanding two weeks, delivering several polished policy speeches. In a speech aimed at minorities as well as unemployed blue-collar workers, he called for rebuilding America’s inner cities using American labor and American steel.
That speech resonated among African-American voters, surveys showed. That doesn’t mean many will vote for Trump, but a gain of even one or two percent in that population group would be significant.
Second, Trump’s trip to Mexico to meet with Mexican president Enrique Pena Nieto turned into a political triumph, as Trump stood on a world stage able to discuss and negotiate policy with another national leader, especially one with whom he disagrees. That addressed Trump’s biggest vulnerability, that he is not presidential and cannot work with world leaders.
Meanwhile, while Trump charged from one venue to the other, Clinton was almost nowhere to be found. While she did appear at private fundraisers, she made only one public speech in 12 days, to the VFW. And that foreign policy speech got stepped on by Trump’s dramatic journey south of the border.
At least in August, Clinton appeared to adopt a ‘keep my mouth shut and wait for Trump to detonate himself’ approach to the campaign, leaving her message to be delivered by ads. That’s a legitimate strategy when you have fairly secure organized constituencies and a lot of money, and Clinton does have a lot of money: She raised $143 million in August.
It’s a strategy that also entails a lot of risks, as those who tried it against Trump in the Republican primaries can attest to. Specifically, Clinton cannot risk losing any black voters; her union base is soft, too, given Trump’s appeal to blue-collar workers on trade and immigration; and money this year has not worked as effectively in media campaigns as in years past.
Clinton’s disappearance has also bolstered already intense speculation that she is not in good health. Conservative media has fed that narrative, but Clinton’s silent August has helped legitimize it, and fueled such social media hashtags as #whereisHillary.
Bad economic numbers are likely having an impact as well. The latest GDP growth of 1 percent on an annualized basis is well below expectations, while, according to the Bureau of Labor Statistics, real wages fell in the first quarter by 0.4 percent, followed by a 1.6 percent drop for the second quarter. None of which is good news for Clinton.
Finally, the swirling controversy about Clinton’s emails just won’t go away, and an Associated Press bombshell about pay-to-play at the State Department while Clinton was there added to the air of corruption.
All in all, though, the ebb-and-flow character of the campaign continues. Two good weeks for Trump and two bad weeks for Hillary could be followed by two bad weeks for Trump and two good ones for Clinton.
As the candidates stay close, one way or the other, it becomes more likely with each day that the debates will settle the election.
Only one thing can be known about the outcome of the debates: The press will declare Clinton the winner by a mile, will savage Trump as unfit to be president, and declare the election over. But that, too, happened in the primaries and didn’t convince voters. What will convince voters is what they see and hear from the candidates, so stay tuned.
The Senate race
In the Wisconsin Senate race, Johnson has made inroads along with Trump.
Among likely voters in November’s election, the Marquette poll states, Feingold leads 45-42, with Libertarian Phil Anderson netting 6 percent. Feingold benefits by likely getting all the votes going to Stein in the presidential race, while Johnson, so far, is bringing back into the Republican column only about 40 percent of Gary Johnson’s presidential voters.
That’s not a good number for Johnson. Because there’s nowhere for Stein voters to go, Feingold has them sewed up, but that’s not true for Johnson’s libertarian-tilting voters. He must not only hold the Libertarian vote he is getting but increase it, or increase his take among other independent voters.
That’s a tall task, barring a seismic shift in the landscape.
Task Force on Youth Workforce Readiness wants technical education valued
Kulp recommends exception to levy limits for technical education programs
Posted By Richard Moore Aug. 30, 2016
The Assembly Speaker’s Task Force on Youth Workforce Readiness released a final report this week, among other things calling for the state to modify the state’s school report cards to value technical education more and to encourage high school entrepreneurship programs.
Northwoods Rep. Rob Swearingen (R-Rhinelander), a member of the committee, said the report includes recommendations to help encourage Wisconsin youth to enter careers in the trades, manufacturing industry, and technical fields.
“The state needs to expose our youth to options available through technical colleges that prepare them for potential careers in the manufacturing sector,” Swearingen said. “The end goal is to keep our kids not only in the Badger state, but in our local communities. Many of these careers offer family-sustaining jobs and competitive wages.”
Swearingen said the task force held five meetings, which included tours and input from stakeholders, since last September. The task force report includes several recommendations by committee chairman Rep. Bob Kulp (R-Stratford) to speaker Robin Vos (R-Rochester) and members of the Assembly.
In addition to a greater focus on technical education and entrepreneurship, Kulp called for one-time exceptions to levy limits for equipment purchases for technical education programs; for integrating math skills in technical education curricula and visa-versa; for modifying DWD grant criteria and outcome goals; and for implementing a clearinghouse for technical education curricula.
Kulp said there is a high demand for skilled workers in the state and jobs are going unfilled.
“We need to do a better job of changing the stigma of these positions that have family-supporting wages,” Kulp said. “We know that attracting more quality workers in these fields is essential to businesses and the economy in our state.”
According to the report, during the committee’s five public sessions, numerous stakeholders emphasized the need to encourage greater participation in career and technical education.
“The task force heard testimony about (and toured) numerous successful programs throughout the state,” the report stated. “For example, the task force heard positive testimony from multiple speakers, including businesses and industry groups, about technical college programs. The task force also learned about several high school technical education programs that have become models for other schools by cultivating support from businesses and developing curricula to prepare students for modern technical careers.”
Despite those programs, though, the report said multiple speakers testified that low participation occurs in part because technical education and careers often suffer from a “perception issue.”
“Speakers mentioned that students, parents, high school counselors, and other groups sometimes perceive technical careers as a lesser choice compared with enrollment in a four-year university, despite high job prospects and earning potential in many technical fields,” the report stated.
“Speakers testified that the perception problem was especially present in high schools with outdated technical education curricula.”
One speaker recommended that the state school report card could be modified to value technical education course enrollments and placement of graduates in technical college programs, the report added, while another speaker suggested requiring internships as part of the high school curriculum, which might require authorizing the Department of Public Instruction to grant waivers to districts that experience hardship in providing internship opportunities to students.
The report also stressed the importance of the private sector in youth training.
“The importance of private sector support and participation was a common theme throughout the testimony before the task force,” the report stated. “For example, model high school technical education programs emphasized that forming relationships and garnering support from local industry partners was a key to program success.”
However, the task force observed, multiple speakers noted that many private employers are reluctant to hire young people, including youth participating in certified programs such as youth apprenticeships.
“Speakers suggested that employers in the manufacturing industry might be especially reluctant,” the report stated. “Speakers emphasized that one reason for that reluctance is a perception that hiring youth is not allowed for a particular type of work or that hiring youth increases liability. Speakers noted that employers may be unaware that state and federal law allows youth to be hired in most certified youth apprenticeship programs.”
Speakers recommended that state law should provide incentives for private employers to hire youth through tax credits and that companies can participate in workforce readiness in other ways, for example, by becoming involved in high school technical education programs.
“One speaker recommended that state law be modified to allow high school students working in student-run businesses as part of their high school curriculum to qualify as youth apprentices despite not earning minimum wage,” the report stated.
Speakers also pointed out that a publication produced by the Department of Workforce Development provides an overview of child labor laws, the report continued, and said that the publication has helped encourage some employers to hire youth. Speakers suggested that additional, similar publications might also be useful.
Finally, the report addressed the relative expense of technical education.
“Multiple speakers stated that technical education programs are typically more expensive than other high school courses because they require ‘hands on’ education, and because model programs utilize expensive machines,” the report stated. “Speakers noted that start-up funds may be available for innovative technical education programs, but that it can be difficult to sustain ongoing funding for the programs.”
As such, the report continued, speakers recommended encouraging private sector support and involvement in technical education programs.
“For example, it was noted that model high school programs have received donations of surplus equipment from area businesses,” the report observed. “One speaker suggested that state law could be modified to allow revenue caps to be exceeded one time for the purchase of equipment for technical education programs. Speakers stated that increasing the class size for technical education courses is not an effective method for reducing cost, because technical education is best taught with low teacher-to-student ratios and opportunities for practical application.”
Democrats, Republicans spar over education funding
Vukmir can’t do math but makes a point
Posted by Richard Moore Aug. 26, 2016
The fall elections aren’t out of the way but already a preliminary battle over next year’s biennial budget is taking place, with Democrats and Republicans sparring over education funding.
The skirmishes indicate just how important the education funding issue is and will be, both in the autumn election cycle and in the Legislature next spring.
The specific contretemps this month focuses on a single question: Is the state spending more or less on education since Gov. Scott Walker and Republicans took control of state government in 2011?
The Democrats say the state is spending less; Republicans say Wisconsin is spending more. The true answer lies in the math, more or less.
The squabble erupted in mid-August went Sen. Janet Bewley (D-Ashland) released an LFB memo she had requested on education spending. The memo showed a reduction in state general aid to more than 75 percent of the state’s school districts, she said, with fewer than 25 percent receiving an increase.
Overall, general aid statewide fell 4.3 percent by the 2015-16 school year compared to 2010-11, the lawmaker asserted. Forty-nine districts lost more than half of their general aid support.
“My Republican colleagues’ budget priorities are out of whack,” Bewley said. “They gave $209 million a year to a wealthy few, claiming it would spur the economy. The truth is that we created fewer jobs in the three years after we enacted that tax giveaway than we did in the three years before.”
Bewley also said the administration awarded what she called “unaccountable voucher school operators” with more than $200 million more.
“At the same time, our classrooms have been cut by $197 million,” she said.
The toll on teachers has been dramatic, Bewley added, saying data from the Department of Public Instruction shows that Wisconsin has lost 2,867 public school teachers and seen a 12.7-percent decrease in local experience in student classrooms over the same period.
“It’s time to stop favoring millionaires and voucher operators,” she said. “Time we starting taking care of our public school students and looking out for middle class property taxpayers.”
Senate Democratic leader Jennifer Shilling (D-La Crosse) was just as vociferous and stayed on the Democratic talking points, namely, that Republicans were giving away education dollars to the wealthy and to private special interests.
“This report highlights the challenges facing local schools and families as a result of misplaced Republican priorities that favor the wealthy and special interests,” Shilling said. “Republicans have used their power to repeatedly cut school funding in order to shift more state dollars to their special interest allies. It’s time to stop shortchanging our children and start investing in our state’s future.”
Shilling homed in on corporate tax breaks. The La Crosse senator said recent reports had underscored Republican tax breaks for companies that have outsourced jobs and that give 11 millionaires a combined $21 million in tax breaks next year.
“Republican tax breaks for the ultra-wealthy have come at the expense of Wisconsin’s schools and children,” she said. “Millions of taxpayer dollars have gone to subsidize companies that have outsourced Wisconsin jobs while school districts are forced to cut teachers, increase class sizes and rely on referendums to maintain outdated buildings. These latest numbers show just how devastating an impact Republican cuts have had on our local communities.”
State Sen. Jon Erpenbach (D-Middleton) said it all boiled down to misplaced priorities.
“Shifting more and more public funds to private schools and signing a blank check for high cost tax breaks for Wisconsin’s most wealthy is a failed agenda,” Erpenbach said. “The reality for our communities is loss of educational opportunities.”
Last week, one Republican senator said the Democratic tirade was misplaced and misleading because, she said, they cherrypicked revenue streams.
According to Sen. Leah Vukmir (R–Brookfield), when all state and local funding sources are considered, combined revenue was up $30 million in 2014-15, or $65 per student since 2010-11. Vukmir said she based her numbers on a more expansive Legislative Fiscal Bureau memo than the one Bewley used.
Vukmir said Bewley’s data represented a typical case of sharing only half the story.
The memo requested by Bewley only included state aid dispersed to school districts, Vukmir said, and ignored additional funding sources, savings derived from enacted reforms, and per pupil funding figures.
She also said Shilling and other Democrats failed to acknowledge that spending reductions in state aid were paired with Act 10 reforms.
“Of course district funding declined, but decreases were offset by accrued savings from Republican led initiatives, which allowed districts to more effectively manage their budgets,” Vukmir said.
The Brookfield Republican said the Legislature had increased state aids to public education since 2012.
“Here’s my advice to my Democrat colleagues unhappy with education in Wisconsin: perhaps aim to improve education policy by diversifying educational opportunity, as opposed to showing more interest in employee-protectionist policies,” Vukmir said. “Recent primary results indicate that Wisconsinites overwhelmingly support educational alternatives. It is becoming rather tiresome that some Democrats continue to criticize effective policy initiatives while simultaneously turning a blind eye to schools failing our youth.”
But she said Shilling was right to say that the state could do better.
“You’re damn right, we can do better,” Vukmir said. “And we will continue to under Republican leadership. I’m interested in continuing along a path of educational improvement and expansion in opportunity. Why doesn’t she? Taxpayer dollars should follow students and their educational needs.”
Oops! Calling all math teachers
As some Democrats pointed out, Vukmir’s math from the numbers she provided from the LFB didn’t quite add up.
While Vukmir claimed that combined revenues for schools was up $30 million since 2010-11, they actually declined from $11.33 billion that year to $11.14 billion in 2014-15, according to the LFB memo she used. Rather than rise by $30 million, revenues dropped by about $185 million.
Her per pupil funding figures were also off. Per student spending from all revenue sources dropped from $13,211 in 2010-11 to $13,039 in 2014-15. Thus, rather than an increase in per pupil spending of $65, as Vukmir claimed, per pupil spending dropped by $172.
Democratic Rep. Sondy Pope of Mt. Horeb pounced.
“The fact that Sen. Vukmir allowed this release out of her office, presumably without looking at her own memo, must be embarrassing,” Pope said. “What she should be even more embarrassed about is that she’s forced local property taxpayers to pick up the bill after she and her Republican colleagues gutted K-12 funding. Incrementally restoring a cut is not an increase, no matter how badly Republicans want it to be.”
Even so, Vukmir has a point in that neither set of figures told the whole story on education funding.
For one thing, neither Vukmir’s or Bewley’s data included spending amounts by districts, an important consideration because, as Vukmir stated, Act 10 has enabled school districts to save money and spend less. Thus, fewer revenue dollars doesn’t necessary translate into lower classroom spending, which could be higher.
Then, too, as Vukmir observed, state aid has bounced back since 2011-12. In that year, state aid totaled only $4.75 billion, compared to $5.1 billion in 2014-15. In 2011-12, total per pupil aid was $12,604 compared to $13,039 in 2014-15, an increase of $435 over that spent in 2011-12.
Thus it matters whether spending comparisons are included and it matters what the benchmark year is. It matters how the equation is structured.
It’s all in the math, more or less.
It’s back: Suit filed against minimum mark-up in Vilas County
WILL, Krist Oil challenge constitutionality of law
Posted by Richard Moore on August 23
A website exclusive
The Wisconsin Institute for Law & Liberty has filed a lawsuit in Vilas County challenging the constitutionality and legality of Wisconsin’s minimum markup law, WILL announced this week.
The group filed the lawsuit Aug. 22 on behalf of plaintiffs Krist Oil and Robert Lotto.
According to the complaint, the civil-rights lawsuit challenges the constitutionality of Wisconsin’s Unfair Sales Act, also known as the minimum markup law, which requires retailers and wholesalers to charge more than the competitive price for the products they sell.
“As a direct and necessary result, the Minimum Markup Law also requires Wisconsin consumers to pay more than the competitive price for the products they buy,” the complaint states. “This lawsuit seeks to vindicate the right of Wisconsin businesses to serve their customers free of anticompetitive, arbitrary, and irrational government regulation.”
WILL says the suit is also seeking to vindicate the right of consumers to purchase products at the most competitive price, free from arbitrary and irrational government regulations that drive up prices.
As the court documents show, Krist Oil Company owns and operates convenience stores and gasoline stations throughout northern Wisconsin and the Upper Peninsula of Michigan, and the lawsuit says the two states provide a comparative landscape by which to judge the minimum mark-up law.
“Krist Oil believes that its business objectives are best served by providing consumers of gasoline with the best product at the lowest possible prices,” the complaint states. “The same is true with respect to other products Krist Oil sells in connection with its convenience store operations.”
But, while the company is able to freely pursue its business strategy in Michigan, which does not control the prices it can charge, it is not able to do so in Wisconsin, the complaint asserts.
“The minimum markup law imposes entirely arbitrary and unreasonable restrictions on retail prices, making it impossible for Krist Oil to offer its Wisconsin customers the best products at the lowest possible prices,” the complaint states.
What’s more, the lawsuit maintains, the company’s right to serve its customers by engaging in a lawful business in the manner of its choosing is protected by the Wisconsin constitution, and in particular by its guarantees of equal protection and due process of law.
“The Minimum Markup Law arbitrarily, irrationally, and unduly restricts the economic liberty guaranteed by the Wisconsin Constitution and thereby harms both Wisconsin businesses and Wisconsin consumers,” the complaint states. “It is therefore invalid and unenforceable.”
WILL identified Robert Lotto as a resident of Green Bay.
“Mr. Lotto regularly purchases gasoline in the Green Bay area,” the complaint states. “Mr. Lotto desires to purchase gasoline at the lowest possible price and searches for the lowest priced gasoline he can purchase. Mr. Lotto is harmed by the Wisconsin law since it requires him to pay a price for gasoline that is higher than what the competitive price would be if Wisconsin’s minimum markup law were not in place.”
And, just to be clear, the lawsuit underscores, the minimum markup is not merely an issue related to fuel sales.
“Mr. Lotto is a consumer of other products subject to the minimum markup law as well,” the lawsuit states. “Just as in the case of gasoline, the Wisconsin Minimum Markup Law has the effect of forcing him to pay higher prices for such products than the prices that would prevail in a truly competitive market.”
Markup is a gift
Later in the day Tuesday, the Wisconsin Petroleum Marketers and Convenience Store Association said the lawsuit was the latest in a string of constitutional challenges to the law that was bound to fail.
After 11 previous challenges, the association said, it’s time to let the law continue to keep prices competitive for Wisconsin consumers.
“We are obviously disappointed that there is yet another challenge to the law that has been working well for Wisconsin consumers for many years,” Matt Hauser, president and CEO of the WPMCSA, said. “This is the 12th constitutional challenge to the Unfair Sales Act and we are confident that the law will be upheld once again.”
Hauser said the Unfair Sales Act ensures that Wisconsin’s independent petroleum retailers can continue to provide their customers with a competitively priced product, and the law has survived because it works well for Wisconsin businesses and consumers. He also said it's not true that consumers are crossing the border for cheaper gas prices.
"Currently Wisconsin gas prices are lower than our neighbor states of Iowa, Illinois and Michigan," Hauser said. “The only neighboring state that’s a bit lower is Minnesota, which also has a fair marketing law. This is just another attempt to create a solution for something that’s not a problem in Wisconsin. It’s more than time to let the Unfair Sales Act do its job – and focus on real problems.”
In its argument, WILL observes that Krist Oil is not affiliated with any of the major gasoline companies.
“Its business plan is to operate independently, and it purchases its supplies of gasoline on the open market instead of being locked in to buying a single brand,” the complaint states. “This allows Krist Oil to buy gasoline at the cheapest price possible on a daily basis, giving it a competitive advantage over many of its competitors who lack that flexibility.”
In fact, WILL asserts, Krist Oil’s business model results in a lower overhead than many if not all of its competitors.
“It does not pay franchise or any similar fees to major oil companies,” the complaint states. “In contrast to many of its competitors, it operates its own fleet for the transportation of products from refineries or other sources to its retail outlets across its market area.”
With those advantages, WILL argues, Krist Oil could and would profitably sell gasoline and other products in Wisconsin at prices lower than the prices required by the minimum markup law.
“Both Krist Oil and its customers would benefit if it were free to do so,” the complaint states. “Customers benefit from the lowest possible prices, and Krist Oil benefits if it can attract new customers and increase its market share. Both Krist Oil and its customers have enjoyed the benefits of aggressive competition in Michigan, where the company is free to charge the lowest prices for its products that it chooses to charge.”
In addition to preventing Krist Oil from charging truly competitive prices in Wisconsin, WILL contends, the minimum markup law imposes undue and unnecessary compliance costs on the company’s Wisconsin operations.
“Krist Oil must devote considerable employee time to surveying posted regional prices to determine whether the prices it charges comply with the Minimum Markup Law,” the complaint states. “It must also prepare and file numerous documents with DATCP such as notices that it is meeting competitors’ prices.”
Meanwhile, WILL continues, the law permits Krist’s rivals to submit baseless complaints about Krist’s legitimate low prices to state enforcement authorities whenever they believe it is in their interest to discourage vigorous price competition.
“Thus, the company is forced to spend time and money to justify the lawful but low prices it charges,” the complaint states. “In order to protect itself from such complaints, it is forced to monitor the prices charged by its rivals and in many cases to file forms with the state that justify its pricing decisions and document its costs. This is a waste of resources that would otherwise be devoted to the business. The Minimum Markup Law thus increases the cost of doing business in Wisconsin and harms both retailers and Wisconsin consumers like Robert Lotto.”
A lawsuit of a different color
WILL has asked for a trial to force the state to prove that it has a reasonable and compelling interest in impeding commerce and protecting Wisconsin’s consumers from low prices.
Unlike previous legal challenges, WILL and the plaintiffs say they are asking the court to resolve the law’s contravention of Wisconsin’s constitutional guarantee to earn a living and to benefit from free markets.
“It’s important that the state of Wisconsin publicly stand up and argue how Wisconsin’s constitutional guarantee to earn a living is secondary to ensuring that protected special interests shouldn’t have to be subject to competition and that consumers should pay higher prices than market forces would call for,” WILL president and general counsel Rick Esenberg said. “We certainly understand that the Legislature has great discretion when it comes to making policy, but the courts should also make clear that politicians cannot play favorites based on some fanciful and implausible notion of public benefit.”
Though the Legislature is capable of repealing the law, and should do so, Esenberg said, that doesn’t change the fact that, until it does, the law continues to violate the fundamental rights of Wisconsin businesses and consumers and should be declared unconstitutional by the courts.
As WILL points out, there have been several unsuccessful challenges to the state’s Unfair Sales Act, but the group says none of them have resolved the constitutional issue presented in the case filed this week.
In 2009, for example, a federal district judge found Wisconsin’s minimum markup law for gasoline to be unconstitutional, saying it violated federal anti-trust prohibitions on the restraint of trade between states.
In the final analysis, the judge concluded, the Unfair Sales Act violated the federal antitrust statute called the Sherman Act, which provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”
And that’s exactly what the Unfair Sales Act was doing, the judge stated.
“To illustrate, the act allows motor fuel retailers to match (but not undercut) their competitors’ prices,” the judge wrote in Flying J v. Van Hollen. “It forbids retailers from selling motor vehicle fuel below cost, which is based on the average posted terminal price plus a minimum markup of 9.18 percent. In addition, the state’s evidence confirms that retailers must hold their posted prices for at least 24 hours. The minimum markup percentage creates a range in which competitors may engage in collusive parallel pricing, which is exacerbated as the wholesale price of gasoline fluctuates. Therefore, the act is a per se restraint of trade because it authorizes and enforces a parallel (or horizontal) pricing policy.”
However, the state countered, the law did not violate the Sherman Act because there was no “concerted action” among retailers to fix prices. In effect, the state argued, the Legislature fixed prices for them.
A year later, in 2010, an appeals court overturned the decision and reinstated the minimum markup.
WILL also points to the 2012 Bhandari v. Nilsestuen decision.
“The only issue considered and decided by the Court of Appeals in the recent case of Bhandari v. Nilsestuen was whether the Unfair Sales Act violates the equal protection provisions of the Wisconsin Constitution,” WILL states. “The Court of Appeals concluded, wrongly we believe, that it did not.”
More important, though, the group states, the Krist Oil case raises robust substantial due process claims that were not considered or decided by the Bhandari court.
“The focus of our complaint is that the Unfair Sales Act unlawfully restricts the economic liberty and right to earn a living guaranteed by the Wisconsin Constitution without furthering any legitimate, substantial, or compelling governmental interest,” WILL states. “And, in contrast to Bhandari, Krist Oil is joined in this case by a consumer, Robert Lotto. Lotto alleges that the Unfair Sales Act denies him and all Wisconsin citizens the benefits of free and open competition without furthering any legitimate, substantial, or compelling governmental interest.”
Wisconsin joins federal lawsuit against Obama’s transgender policies
Living on the Funny Cide of Life
Posted May 19, 2016
by Richard Moore
Advice to this year’s graduates
Some years ago, I wrote about the great Secretariat, the 1973 Triple Crown winner who still holds the records for the fastest times in all three Triple Crown races, the Kentucky Derby, the Preakness Stakes, and the Belmont Stakes.
Back then, Secretariat was a superhero in a war-weary nation — Time Magazine featured him on its cover, calling him SuperHorse — and when I wrote about him I urged young graduates seeking role models to look no further than, yes, a horse: Secretariat.
In those races, and especially in the Belmont Stakes where he achieved immortality, Secretariat seemed to soar with Heaven-sent energy.
He appeared to be running not against the long-faded field but against himself. He ran himself right into history, in fact, and I advised young graduates that, yes, they should follow Secretariat’s example: Just set your goals and run toward them. Pass everybody by. Don’t let them catch you. Don’t let the crowd of onlookers distract you or intimidate you.
Just run and never stop running, and you just might find there’s still a place for heroes in the hearts of a nation. You just might run yourself into history.
That’s still good advice, but, of course, most of us are not a Secretariat. A superhero comes along only once in a great while. So what about the rest of us?
Well, that brings me to a horse I know named Funny Cide and to some more horse-sense advice for this year’s graduates.
Funny Cide wasn’t a nationally adored glamour horse like Secretariat. He was never featured on the cover of Time. Nobody called him SuperHorse. No Funny Cide toy lines appeared in stores for the kids.
It’s even an overstatement to say his beginnings were modest.
He didn’t have an impressive pedigree, and he was born and raised in New York, at the time hardly the home of horse-racing champions, almost the antithesis, in fact.
His owners? A group of fans who had liked to pal around at the race track since their school days, who didn’t have much money, and who were hardly horse savvy. They each plunked down a little for a horse they could afford as a way to keep the crowd together. It is said they arrived at the Kentucky Derby in a school bus.
His jockey? A hard-scrabble has been. His trainer? A 30-year knock-around.
It didn’t seem too promising. And yet, Funny Cide, with courage and spunk and just a somewhat precocious personality — a horse who liked to ham it up — had other ideas.
Funny Cide worked hard, very hard, and it began to pay off here and there as a two year old. He wasn’t grabbing the headlines like his rivals Empire Maker and Peace Rules, but he was beginning to place in a few races.
And then he began winning races, here and there.
And, seemingly overnight, he woke up to be a Kentucky Derby contender after finishing second to Empire Maker in a well-known Derby preamble race, the Grace Woods Memorial.
Well, he wasn’t exactly a contender but a contender to be in the race, at least. After all, he was still finishing back in the pack in some contests.
People in his native Saratoga Springs, New York, though, began to take notice. Funny Cide suddenly had a fan club, and among them were throngs of school children excited about the success of their local horse. Now not just his owners but a coterie of horse-racing fans, not to mention an entire community, were rooting for this courageous underdog with the funny name.
Funny Cide, a ham as well as a horse, loved it all.
And then came Derby day, where the fairy tale was supposed to end. Funny Cide went off the post at only 12-1 odds, or, as The New York Times put it that morning, he was the “yeah, right” horse in the field.
Empire Maker and Peace Rules were the royalty, but Empire Maker came out of the gate slow, and somehow, someway, as they rounded the first turn, Funny Cide was right there, sailing alongside Peace Rules.
That day, peace would not rule. The courageous Funny Cide kept digging and digging, running and running, and, at the end, he ran away from the field for a two-length win and the tenth fastest Kentucky Derby in history. It still is.
For his rag-tag owners, it was a dream come true, and, to his new multitude of fans, so many young people among them, proof of what an underdog can do. Funny Cide was the first New York-bred horse ever to win a Derby, and the first gelding in 74 years to do so.
One of the owners, Jack Knowlton, put it this way to The New York Times: “We are the little guys in the game. Everyone who dreams in this game, … look at what you can accomplish. Little did we know.”
Funny Cide wasn’t through. The Preakness wasn’t even a contest as the gelding stormed to an almost nine-length victory, setting up his run for glory in the Belmont Stakes. The hype now was unbelievable. He was being called “the people’s horse,” and the crowds in the stands were chanting his name.
Alas, it wasn’t to be. It had rained all day the day before and the mud was thick at the Belmont.
Funny Cide got stuck in the deepest mud along the rail. He galloped gallantly but on that day he did not win. Maybe it was the mud, or maybe he was exhausted from the Preakness, or maybe he just wasn’t the best horse, but Funny Cide finished third.
There was no more national hype. The lights dimmed. The national audience turned away. For the media, Funny Cide was so yesterday, despite being one of only 23 horses to win both the Derby and the Preakness, out of almost 5,000 who had ever competed.
Funny Cide would race for four more years, with modest success, before retiring. But the story really doesn’t end there. Instead, his retirement was just another beginning.
As it turned out, a nation hungering for a Triple Crown winner might have moved on, but, in upstate New York, in Kentucky, and across the land in fan clubs, Funny Cide’s admirers stayed put.
On his last day of competition, an overflow crowd of 11,000 turned out to see him, and Funny Cide responded by winning his last race ever. The crowd returned the favor, giving the gelding a long standing ovation.
A month later, at Saratoga Springs, at the track where he came of age, the New York Thoroughbred Breeders Association feted Funny Cide with a retirement party. Among an adoring flock, he received a cake in the winner’s circle, and a local shop named an ice-cream treat for him whose name maybe said it all, Funny Cide Pride.
These days, some 13 years after the glory, Funny Cide resides at the Kentucky Horse Park in Lexington, Kentucky, but he is anything but forgotten.
His fans are still there. In 2010, the New York Thoroughbred Breeders Association voted him the New York-bred horse of the decade, and, two years later, a statue of Funny Cide was unveiled in Saratoga Springs. Also that year, he participated in a seminar (I’m not kidding) for prospective racehorse owners.
The appreciation runs nationally, as children of all ages come to see Funny Cide in retirement, and many make special efforts to do so. It is said a certain fan makes it a habit to visit on Thanksgivings. She comes because she knows not many will be around, and she gets to spend all day with him.
The short story is, Funny Cide was not a Triple Crown winner, he was no Sea Biscuit or Secretariat, but he is still one of the most popular and admired horses of the ages.
The question is, why? Most say it’s because he was the people’s horse who rose up to defeat thoroughbred royalty.
Maybe, but I think Funny Cide offers a greater lesson still. Funny Cide didn’t win the Triple Crown and never earned the star power of Secretariat, b ut that’s OK because of the impact he had on thousands and thousands of lives, so many of them young people, on the communities of upstate New York, and in fan clubs across the country.
He was a gritty underdog who ran with courage and pride, and he taught all his adoring fans they they, too, can achieve great success if they just ran, and worked hard, and kept at it. Just dream, Funny Cide’s story screams, and look at what you can accomplish.
The lesson he taught his fans was simply this: You don’t have to a national superhero to make a difference in the lives of the people around you. Just work hard and with passion and determination, like Funny Cide, and, even if you fall a little short, your achievements will ripple ever outward, touching the lives of those around you in ways you will never even imagine.
And the inspiration that that instills in those people will ripple ever outward from them, inspiring legions more.
Maybe that’s the real essence of a true superhero: the quiet but powerful inspiration of a career well done and a life well lived. There can be no better legacy, no more powerful role model.
It’s not so much what you accomplish, but the lessons those accomplishments leave behind. Funny Cide was a Derby winner and a Preakness winner, but his greatest feat was the inspiration and hope — the dare to dream — he gave to those who loved him. The underdogs, Funny Cide teaches us, are just as important in this world as the top dogs, maybe more so, even if they don’t get the headlines.
These days Funny Cide still inspires (he inspired me when I visited him last month), still leads parades, and, back at the park, he loves peppermint candies, pies, and brownies, not necessarily in that order.
It’s a good life, and we can live it, too. Just have pride and courage and keep working, and you can change the world.
It might not be a tidal wave, but the little riffles you cause in the tides shape the shore just the same, when you live on the Funny Cide of life.